Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Namibia (Ratification: 2001)

Article 1 of the Convention. Legislation. The Committee recalls its previous comments in which it noted that the prohibition of unfair dismissal in section 33 of the Labour Act 2007 omitted the grounds of HIV and AIDS, degree of physical or mental disability and family responsibilities, which are listed in the general non-discrimination provision of the Labour Act (section 5). The Committee notes that one case was filed on the basis of section 5 and that many cases were filed and solved through conciliation concerning section 33 of the Labour Act. In order to ensure that there is no discrimination on the basis of HIV and AIDS, the degree of physical or mental disability and family responsibilities, the Government indicates that the Ministry of Labour and Social Welfare regularly conducts inspections at the workplace and that workers can lodge complaints with the Office of the Employment Equity Commissioner, the Office of the Labour Commissioner and the Office of the Ombudsman, though it does not appear that any cases on the grounds of HIV and AIDS, physical or mental disability or family responsibilities have yet been brought before these bodies. The Committee asks the Government to consider including specific provisions prohibiting dismissal based on the grounds of HIV and AIDS, degree of physical or mental disability and family responsibilities, with a view to ensuring consistency between sections 5 and 33 of the Labour Act. The Committee also asks the Government to provide specific information on the practical measures taken in order to protect workers against unfair dismissal based on these grounds including information on cases brought before the Office of the Employment Equity Commissioner, the Office of the Labour Commissioner, or the Office of the Ombudsman, as well as on the steps taken to raise awareness of the available remedies.

Article 1(1)(b). Sexual orientation. The Committee recalls its previous comments in which it noted with regret that the Labour Act no longer prohibited discrimination based on the ground of sexual orientation, which had been the case under the previous legislation of 1992, and with respect to which the Government had indicated that it was covered by the Convention pursuant to Article 1(1)(b). The Committee notes that the Government refers to article 10 of the Constitution which prohibits discrimination based on sex, race, colour, ethnic origin, creed, and social or economic status, adding that inspections at the workplace are conducted in order to ensure that no discrimination takes place and that workers are treated equally, regardless of their sexual orientation. The Committee notes from the Report of the Working Group on the Universal Periodic Review of the United Nations Human Rights Council that while the Constitution outlaws discrimination of any kind, since independence, no cases of discrimination on the basis of sexual preference or orientation have been addressed by the courts (A/HRC/17/14, paragraph 21). The Committee recalls that where no cases or complaints are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The Committee asks the Government to ensure that workers have the same level of protection against discrimination on the grounds of sexual orientation as provided under section 5 of the Labour Act with respect to other grounds, and to provide information on specific measures taken in this regard.

Articles 2 and 5. Implementation of the national policy and affirmative action. The Committee notes from the 2008–09 annual report of the Employment Equity Commission (EEC) that the representation of previously disadvantaged groups because of race in management positions remained static. While accounting for 6 per cent of the total number of employees, those previously advantaged (whites), comprised 58 per cent of executive directors. The previously disadvantaged (blacks) comprised 28 per cent of executive directors, improving their share of representation by 2 per cent. Women accounted for 41 per cent of persons in managerial positions and 42 per cent of persons promoted to managerial positions. As to persons with disabilities, the Committee notes that they are under-represented at almost every level of employment, accounting for 0.5 per cent of the total workforce. The Committee welcomes the measures taken by the Government to raise awareness and to better implement affirmative action in employment and occupation, including, organising visits by the EEC at the workplace to provide information on affirmative action to relevant employers and workers, attending to complaints received and verifying the information contained in affirmative action reports received from relevant employers. The Government also indicated, however, that the shortage of staff remained a very serious constraint in the enforcement of the Affirmative Action (Employment) Act. The EEC indicates in its report that many complaints received alleged racial discrimination, and more specifically preference of non-Namibians above qualified Namibians by employers, referring to employers’ non-compliance with section 19 of the Affirmative Action (Employment) Act, obliging employers to give priority to candidates from designated groups (namely, disadvantaged persons because of race, women, and persons with disabilities). The Committee notes that 100 cases of non-compliance were filed against employers during the review period 2008–09. The Committee asks the Government to continue providing information on the application of the Affirmative Action (Employment) Act, including information on the impact it has had on the representation of designated groups in management positions, and specific information on cases of non-compliance or discrimination by employers brought before the Court. Please also provide specific information on the affirmative action plans, and on the possibility to increase the number of staff with a view to better enforcement of the Affirmative Action (Employment) Act. The Committee reiterates its request for information on measures taken to ensure and promote equality of opportunity and treatment of persons from designated groups in respect of access to vocational training with a view to fostering both their career advancement and their access to a wider range of jobs.

The Committee is raising other points in a request addressed directly to the Government.